Citation Nr: 1021102
Decision Date: 06/08/10 Archive Date: 06/21/10
DOCKET NO. 07-38 720 ) DATE
)
)
On appeal from the
Department of Veterans Affairs (VA) Regional Office (RO)
in Roanoke, Virginia
THE ISSUE
Entitlement to an increased rating in excess of 50 percent
for the service connected residuals, right scaphoid fracture
and scar with history of non-union post-operative changes and
traumatic degenerative changes (right wrist disorder).
REPRESENTATION
Appellant represented by: Virginia Department of
Veterans Services
ATTORNEY FOR THE BOARD
D. Daniels, Law Clerk
INTRODUCTION
The Veteran served on active duty from September 1979 to
January 1980, with subsequent reserve service from February
1980 to January 1988.
This matter comes before the Board of Veterans' Appeals
(Board) from an October 2005 rating decision of the Roanoke,
Virginia, RO that granted the Veteran an increased rating
from 30 percent to 50 percent for his service connected right
wrist disorder effective March 24, 2005.
FINDINGS OF FACT
1. The Veteran is right hand dominant.
2. The Veteran's right wrist disability is productive of
ankylosis of the major wrist in any degree of palmar flexion,
but not loss of use by his dominant hand.
3. The preponderance of the evidence shows that the Veteran
does not have neurologic impairment of the right wrist.
4. The Veteran does not suffer from painful scars.
CONCLUSION OF LAW
The criteria for the assignment of an evaluation in excess of
50 percent for the service-connected right wrist disorder are
not met. 8 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§
3.102, 3.321, 4.1, 4.3, 4.7, 4.14, 4.40, 4.45, 4.59, 4.69,
4.71a, Diagnostic Codes 5125, 5214, 5215 (2009)
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
Veterans Claims Assistance Act
The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L.
No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at
38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126
(West 2002) redefined VA's duty to assist the claimant in the
development of a claim. VA regulations for the
implementation of VCAA were codified as amended at 38 C.F.R.
§§ 3.102, 3.156(a), 3.159, and 3.326(a) (2009).
The notice requirements of VCAA require VA to notify the
claimant of what information or evidence is necessary to
substantiate the claim; what subset of the necessary
information or evidence, if any, the claimant is to provide;
and what subset of the necessary information or evidence, if
any, the VA will attempt to obtain.
The Board notes that a "fourth element" of the notice
requirement requesting the claimant to provide any evidence
in the claimant's possession that pertains to the claim was
recently removed from the language of 38 C.F.R.
§ 3.159(b)(1). See 73 Fed. Reg. 23,353-356 (April 30, 2008).
The requirements apply to all five elements of a service
connection claim: Veteran status, existence of a disability,
a connection between the Veteran's service and the
disability, the degree of disability, and the effective date
of the disability. Dingess/Hartman v. Nicholson, 19 Vet.
App. 473 (2006).
Such notice must be provided to a claimant before the initial
unfavorable decision on a claim for VA benefits by the agency
of original jurisdiction (in this case, the RO). Id; see
also Pelegrini v. Principi, 18 Vet. App. 112 (2004).
However, insufficiency in the timing or content of the VCAA
notice is harmless if the defect is not prejudicial to the
claimant. Conway v. Principi, 353 F.3d 1369, 1374 (Fed. Cir.
2004) (VCAA notice errors are reviewed under a prejudicial
error rule).
In Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008) it was
held that that in an increased rating claim, 38 U.S.C.A.
§ 5103(a) requires, at a minimum, that VA notify the claimant
that a rating is determined by Diagnostic Codes based on the
nature, severity, and duration of symptoms; and that to
substantiate the claim the claimant must provide, or ask VA
to obtain, medical or lay evidence a worsening or increase in
severity of the disability and the effect that worsening has
on the claimant's employment and daily life. However, this
case was recently overturned by the Federal Circuit. See
Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. Sept. 4,
2009) (VCAA notice in a claim for increased rating need not
be "Veteran specific" and need not include reference to
impact on daily life or rating criteria; rather only generic
notice is required).
In May 2005 letter, the RO provided notice to the Veteran
regarding what information and evidence is needed to
establish entitlement to an increased evaluation for his
service connected disability, as well as what information and
evidence must be submitted by the Veteran, what information
and evidence will be obtained by VA, and the need to advise
VA of or submit any further evidence that pertained to the
claim.
In a November 2006 letter, again provided notice to the
Veteran regarding what information and evidence is needed to
establish entitlement to an increased evaluation for his
service connected disability, as well as how disability
ratings and effective dates were assigned.
In a May 2008 letter, the RO advised the Veteran that to
substantiate his claim the Veteran should submit evidence as
to the nature and symptoms of the condition; severity and
duration of the symptoms; impact of the condition and
symptoms on employment and daily life.
The case was thereafter readjudicated in an August 2009
Supplemental Statement of the Case (SSOC). See Mayfield v.
Nicholson, 444 F.3d 1328 (Fed. Cir. 2006) (where notice was
not provided prior to the RO's initial adjudication, this
timing problem can be cured by the Board remanding for the
issuance of a VCAA notice followed by readjudication of the
claim by the RO); see also Prickett v. Nicholson, 20 Vet.
App. 370, 376 (2006) (the issuance of a fully compliant VCAA
notification followed by readjudication of the claim, such as
a statement of the case or a supplemental statement of the
case, is sufficient to cure a timing defect).
Although the Veteran has not identified or shown that any
potential errors are prejudicial, the Board finds that any
arguable lack of full preadjudication notice in this appeal
has not, in any way, prejudiced the Veteran. See Shinseki v.
Sanders, 07-1209 slip op. at 11-12 (April 21, 2009). Hence,
the Board finds that the VCAA notice requirements have been
satisfactorily met in this case.
The Board is also satisfied VA has made reasonable efforts to
obtain relevant records and evidence, including affording a
VA examination. Specifically, the information and evidence
that has been associated with the claims file includes the
post service private treatment records, QTC examinations,
statements from the Veteran's representative, and the
Veteran's own statements.
Additionally, as the Board will discuss, the Veteran was
provided with a QTC examination in August 2009. The report
of this examination reflects that the examiner reviewed the
Veteran's past medical history, recorded his current
complaints, conducted an appropriate physical examination and
rendered an appropriate diagnosis and opinion consistent with
the remainder of the evidence of record.
The Board therefore concludes that the examination is
adequate for the purposes of this decision. See 38 C.F.R. §
4.2 (2009); see also Barr v. Nicholson, 21 Vet. App. 303, 312
(2007). The Veteran and his representative have not
contended otherwise.
As discussed, the VCAA provisions have been considered and
complied with. The Veteran has been specifically notified of
the evidence needed to substantiate the claim, the avenues
through which he might obtain such evidence, and the
allocation of responsibilities between himself and VA in
obtaining such evidence. He was an active participant in the
claims process and he responded to VA's requests for
information.
Any error in the notice is not shown to have affected the
essential fairness of the adjudication or to cause injury to
the claimant. See Conway, supra. As such, there is no
indication that there is any prejudice to the Veteran in
considering this matter on the merits. Id, Dingess, supra;
see also ATD Corp. v. Lydall, Inc., 159 F.3d 534, 549 (Fed.
Cir. 1998).
Analysis
Law and Regulations for Increased Rating
Disability evaluations are determined by comparing a
Veteran's present symptomatology with criteria set forth in
VA's Schedule for Rating Disabilities, which is based on
average impairment in earning capacity. See 38 U.S.C.A.
§ 1155; 38 C.F.R. Part 4. When a question arises as to which
of two ratings apply under a particular diagnostic code, the
higher evaluation is assigned if the disability more closely
approximates the criteria for the higher rating; otherwise,
the lower rating will be assigned. See 38 C.F.R. § 4.7.
After careful consideration of the evidence, any reasonable
doubt remaining is resolved in favor of the Veteran. See 38
C.F.R. § 4.3.
The Veteran's entire history is to be considered when making
disability evaluations. See generally 38 C.F.R. § 4.1;
Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Where
entitlement to compensation already has been established and
an increase in the disability rating is at issue, it is the
present level of disability that is of primary concern. See
Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Moreover,
where the evidence contains factual findings that show a
change in the severity of symptoms during the course of the
rating period on appeal, assignment of staged ratings would
be permissible. See Hart v. Mansfield, 21 Vet. App. 505
(2007). However, here, the evidence reflects that the
Veteran's symptoms have remained constant throughout the
course of the period on appeal and, as such, staged ratings
are not warranted.
In addition, the assignment of a particular diagnostic code
is "completely dependent on the facts of a particular
case." See Butts v. Brown, 5 Vet. App. 532, 538 (1993). One
diagnostic code may be more appropriate than another based on
such factors as the Veteran's relevant medical history, his
current diagnosis, and demonstrated symptomatology. Any
change in diagnostic code by a VA adjudicator must be
specifically explained. See Pernorio v. Derwinski, 2 Vet.
App. 625, 629 (1992).
Further, when evaluating musculoskeletal disabilities, VA may
consider granting a higher rating in cases in which
functional loss due to pain, weakness, excess fatigability,
or incoordination is demonstrated, and those factors are not
contemplated in the relevant rating criteria. See 38 C.F.R.
§§ 4.40, 4.45, 4.59; DeLuca v. Brown, 8 Vet. App. 202 (1995).
In addition, VA must consider whether the service-connected
right wrist disorder warrant separate ratings for the
residual scarring. See Esteban v. Brown, 6 Vet. App. 259,
261 (1994) (permitting separate evaluations for separate
problems arising from the same injury if they do not
constitute the same disability or same manifestation under 38
C.F.R. § 4.14). Diagnostic Code 7804 provides that scars
that are tender and painful on examination warrant a maximum
10 percent rating. Under Diagnostic Code 7805, scars are
rated based on the limitation of motion of the part affected.
Loss of use of a hand will be held to exist when no effective
function remains other than that which would be equally well
served by an amputation stump at the site of election below
elbow with use of a suitable prosthetic appliance. The
determination will be made on the basis of the actual
remaining function, i.e., whether the acts of grasping,
manipulation, and the like in the case of the hand could be
accomplished equally well by an amputation stump with
prosthesis. 38 C.F.R. § 4.63 (2009).
Under the laws administered by VA, disabilities of the upper
extremities are rated under 38 C.F.R. § 4.71a. For rating
purposes, a distinction is made between major (dominant) and
minor musculoskeletal groups. Handedness for the purpose of
a dominant rating will be determined by the evidence of
record, or by testing on VA examination. Only one hand shall
be considered dominant. The injured hand, or the most
severely injured hand, of an ambidextrous individual will be
considered the dominant hand for rating purposes. 38 C.F.R.
§ 4.69 (2009). Here, as the medical evidence shows that the
Veteran is right-hand dominant, his right upper extremity is
his dominant extremity for rating purposes.
Increased Rating for the Right Wrist Disability
The Veteran's right wrist disorder is currently rated as 50
percent disabling, the maximum schedular rating under
Diagnostic Code 5210, which provides for a 50 percent rating
for nonunion of the radius and ulna with flail false joint.
Although given the history of the Veteran's disability he was
evaluated under Diagnostic Code 5210, the Board finds that he
is now more appropriately rated under Diagnostic Code 5214,
which provides for a maximum schedular 50 percent rating for
unfavorable ankylosis of the major wrist, in any degree of
palmar flexion, or with ulnar or radial deviation. Further,
because Diagnostic Codes 5210 and 5214 both involve the
position of the bones of the right wrist and the function
affected, it would be pyramiding to assign separate
evaluations under each code.
A March 2005 VA treatment note reflects that the Veteran
underwent a right wrist fusion with iliac crest bone graft.
A June 2005 VA examination report shows that the Veteran had
undergone a total wrist fusion. An August 2009 QTC
examination report indicated that the Veteran's wrist was
ankylosed in a favorable position. The QTC examiner noted
that there was fusion of all carpal bones. There is no
mention of nonunion of the radius and ulna with a flail false
joint.
Diagnostic Code 5215, limitation of motion of the wrist,
provides for a maximum schedular 10 percent disability rating
for dorsiflexion less than 15 degrees or palmar flexion
limited in line with the forearm. However, as the Veteran is
already rated at 50 percent, this code would not provide a
higher rating.
The Veteran is already receiving the highest schedular rating
established by law for the purpose of rating of service-
connected disability picture manifested by unfavorable
ankylosis of the right wrist by Diagnostic Code 5214. Other
rating criteria provide for higher ratings, but this must be
based on a finding that meets or more closely resembles a
disability picture manifested by anatomical loss or an
overall functional deficit consistent with loss of use of the
minor or major hand under Diagnostic code 5125. Diagnostic
Code 5125 provides for a 60 percent disability rating for
loss of use of the minor hand and a 70 percent disability
rating for loss of use of the major hand. Similar codes
provide for higher disability rating upon the amputation of
an upper extremity. The Board notes there is no evidence to
suggest the presence of a disability picture that is
consistent with amputation or loss of use of the right wrist
to support the assignment of a higher evaluation under the
provisions of Diagnostic Code 5125.
Further, with respect to neurological problems, the Board
notes that the preponderance of the evidence shows no
objective evidence of any residual neurological impairment
related the service-connected disability. See June 2005,
December 2006 and August 2009 VA examination reports. As
such, a separate compensable evaluation under Diagnostic
Codes 8511, 8512, and 8513 is not warranted.
A March 2005 VA treatment note reflects that the Veteran
reported changing jobs to one requiring a substantial amount
of labor. He indicated that at the end of the day as well as
after performing rigorous activities he had quite a bit of
pain and swelling around the right wrist fusion. The Veteran
further reported some numbness and tingling as well as color
changes.
During a March 2005 VA Orthopedic Consult, the Veteran again
reported some numbness and tingling along with color changes.
The treating physician noted that there was no range of
motion with flexion or extension of the wrist as well as
ulnar or radial deviation. The examiner noted that the
Veteran remained neurovascularly intact, that carpal tunnel
compression tests as well as Tinel's test were negative, and
that there was no evidence of thenar atrophy.
During a June 2005 VA examination, the Veteran reported
having had multiple surgeries on the right wrist, that he has
constant pain in his wrist, that he has some swelling,
occasional heat and redness, no instability, and no locking.
He also reported that his wrist was easily fatigable and that
any repetitive motion or use of the wrist results in quite a
bit of pain. He indicated that his endurance had gone down.
The Veteran further indicated that he takes 800 milligrams of
Motrin with some relief in pain. The Veteran reported
suffering debilitating flare-ups lasing 50 minutes and that
only complete cessation of any activities provided relief.
The VA examiner noted that the Veteran was able to dress
himself, feed himself and perform other activities of daily
living. The VA examiner noted that when the Veteran makes a
fist many times, he begins to complain of pain and his grip
strength is decreased. He also noted that the Veteran had no
signs of Tinel's or nerve problems with regards to the median
or ulnar nerves.
A March 2006 VA Orthopedic treatment note reflects complaints
of continued wrist pain that increased with activity. The
Veteran denied any numbness or tingling in his digits. The
treating physician noted that the Veteran presented with
continued wrist pain, and then indicated that there was no
joint about the wrist for him to have the mechanical type
symptoms that he had described. The treating physician
further noted that the Veteran had no pain with supination or
pronation or tenderness over his distal radioulnar joint
which might indicate a problem in that area.
During a June 2006 VA orthopedic treatment note, the Veteran
reported some numbness, tingling, and whitening of his second
and third digits, especially when working at his job buffing
the floor. The treating physician noted that these symptoms
may be consistent with a white finger type syndrome or a
vibratory-induced carpal tunnel syndrome that may be
secondary to the work that he was performing. He went on to
note that the Veteran has a joint remaining at the second
carpometacarpal joint, but that on examination the Veteran
did not seem to have any pain of the distal radial ulnar
joint. Finally, the treating physician noted that the
Veteran's numbness and tingling may be the result of the
vibration-inducing equipment used at the Veteran's work.
In a later June 2006 VA orthopedic treatment note, the
treating physician noted that a bone scan was negative for
reflex sympathetic dystrophy (RSD) and that it was likely
that the vibratory induced carpal tunnel syndrome is
aggravated by the vibration inducing equipment.
During a December 2006 QTC examination, the Veteran reported
that he has daily pain in his wrist, that he has difficulty
with activities of daily living, brushing his teeth, putting
on his clothes, and driving a car. The Veteran further
reported that he could work, but that he has swelling and
coldness in his right wrist and hand, that grasping objects
and lifting caused pain, and that because of his swelling and
pain, his social life was impacted. The QTC examiner noted a
well healed hyperpigmented scar on the right wrist with no
tenderness, or keolid formation. The QTC examiner noted on
examination of the right wrist, no edema, effusion, weakness,
tenderness, redness, heat, abnormal movements, guarding, or
subluxation of the right or left wrist. He further noted
that the right wrist was ankylosed with a prosthetic device
at 0 degrees while the left wrist was normal. He indicated
that there is extremely unfavorable ankylosis right wrist.
On Neurological assessment of the right and left upper
extremities, the QTC examiner found them to be normal with
normal strength, tone, sensory and reflexes. The vascular
assessment was normal as well.
The Board notes that lay evidence in the form of statements
or testimony by a claimant is competent to establish evidence
of symptomatology where symptoms are capable of lay
observation. Layno v. Brown, 6 Vet. App.465, 469 (1994);
Savage, 10 Vet. App. 488, 495-98. Furthermore, once evidence
is determined to be competent, the Board must determine
whether such evidence is also credible. See Layno, 6 Vet.
App. 465, distinguishing between competency ("a legal
concept determining whether testimony may be heard and
considered") and credibility ("a factual determination
going to the probative value of the evidence to be made after
the evidence has been admitted").
In the following letters submitted December 2006, the
Veteran's neighbor J.D.W. reported assisting the Veteran on
several occasions to open jars, cans, and even help with some
household chores such as replacing screws. R.B.S., another
neighbor indicated having seen the Veteran's swollen right
wrist, and listened to his complaints about it hurting. The
Veteran's father G.M. reported that his son has a very
painful and swollen right wrist, and that he can not hold
things for long periods of time without it hurting or
swelling. Finally, V.M.G. a psychiatric nurse manager and
acquaintance of the Veteran reported observing him as an
excellent worker, but that he consistently complained of
discomfort and pain in his wrist and hand. In a January 2007
letter, the Veteran's supervisor Mrs. P.W. reported that the
Veteran complains of pain, swelling and aches in his right
wrist on a "daily basis" which required him to stop working
for a while.
The Board notes that lay witnesses can testify as to the
visible symptoms or manifestations of a disease or
disability. Here, however, the competent medical evidence
shows that the Veteran does not have any neurological
impairment related to his service-connected disability.
Therefore, the Board assigns more weight to the objective
medical evidence of record as outlined above.
During an August 2009 QTC examination, the Veteran reported
symptoms of weakness, stiffness, swelling, giving way, lack
of endurance, locking and dislocation. He further reported
that he does not experience heat, redness, fatigability,
deformity, tenderness, drainage, effusion, subluxation and
pain. He also reported flare-ups as often as one time per
day lasting for 24 hours and a severity level for pain of 10
out of 10. He indicated that the flare-ups are precipitated
by stress and that they occur spontaneously. The pain is
relieved spontaneously by Percocet. During his flair-ups,
the Veteran indicated that he does not experience functional
impairment or limitation of motion of the joint and that he
has not had any incapacitation, joint replacement, and that
his overall impairment consists of difficulty doing his job.
The August 2009 QTC examiner noted that the Veteran was right
hand dominant because he uses it to write and eat. The
examiner noted that there was wrist joint ankylosis at 0
degrees dorsiflexion in a favorable position, that the joint
was stable and painful. There was ankylosis at 0 degrees of
write wrist palmer flexion, 0 degrees of right wrist radial
deviation, and ankylosis at 0 degrees of right wrist ulnar
deviation, all in favorable positions. The QTC examiner
noted that range of motion or the right wrist was not
performed because the joint is ankylosed. X-ray reports
indicated there was no acute fracture or dislocation, but
there was degenerative spurring of the volar aspect of the
base of the first metacarpal. The QTC examiner opined that
there was no effect of the condition on the Veteran's usual
occupation and hence, no limitations on his occupation or his
daily activities. Finally, the QTC examiner noted that the
Veteran reported a scar of the right wrist caused by surgery,
but that the scar was not painful. The QTC examiner noted
that there was no skin breakdown or other symptoms, and that
the Veteran does not experience any functional impairment due
to the scar.
In light of the fact that the Veteran's complaints about
numbness and tingling in his hand have been attributed to the
use of vibration inducing equipment by a June 2006 VA
orthopedic treating physician, a March 2005 VA Orthopedic
Consult found the Veteran neurovascularly intact, that carpal
tunnel compression tests as well as Tinel's test were
negative with no evidence of thenar atrophy, that a June 2006
orthopedic treatment noted bone scans were negative for RSD,
and that December 2006 QTC examination neurological tests
have found the Veteran's upper extremities to be normal, with
normal strength, tone, sensory and reflexes, the Board finds
that there is no basis for a separate neurological rating.
The Board also finds that the Veteran does not have a painful
scar that limits function of the right wrist disability as
noted by the December 2006 QTC examiner who indicated that
the Veteran had a well healed hyperpigmented scar on the
right wrist with no tenderness, or keolid formation, and the
August 2009 QTC examiner, who noted that there was no skin
breakdown or other symptoms, and that the Veteran does not
experience any functional impairment due to the scar.
Furthermore, as the June 2005 VA examiner noted the Veteran
was able to dress himself, feed himself and perform other
activities of daily living, and the August 2009 QTC examiner
found that there was no effect of the condition on the
Veteran's usual occupation and hence, no limitations on his
occupation or his daily activities, consequently, the Board
finds that the Veteran does not meet the criteria for an
increased rating in excess of 50 percent for the right wrist
disorder, the. The overall disability picture is best
described as unfavorable ankylosis of the major wrist in any
degree of palmar flexion, but not loss of use by his dominant
hand there is no question as to which rating should apply.
38 C.F.R. § 4.7.
The Board has considered all other applicable provisions of
38 C.F.R. Parts 3 and 4, whether or not they have been raised
by the Veteran, as required by Schafrath v. Derwinski, 1 Vet.
App. 589 (1991). After a careful review of the available
Diagnostic Codes and the medical evidence of record, the
Board finds that a Diagnostic Code other than 5214 does not
provide a basis to assign an increased schedular rating for
the service-connected right wrist disorder. Absent competent
evidence showing loss of use of the right hand, a higher
evaluation is not assignable in this case.
The provisions of 38 C.F.R. § 3.321(b)(1) have also been
considered. However, in this case, the evidence does not
show that the Veteran's right wrist disability presents an
exceptional or unusual disability picture as to render
impractical the application of the regular schedular
standards so as to warrant referral under 38 C.F.R. §
3.321(b)(1) at any time during the rating period.
Pursuant to § 3.321(b)(1), the Under Secretary for Benefits
or the Director, Compensation and Pension Service, is
authorized to approve an extraschedular evaluation if the
case "presents such an exceptional or unusual disability
picture with such related factors as marked interference with
employment or frequent periods of hospitalization as to
render impractical the application of the regular schedular
standards." 38 C.F.R. § 3.321(b)(1) (2009).
The question of an extraschedular rating is a component of a
claim for an increased rating. See Bagwell v. Brown, 9 Vet.
App. 337, 339 (1996). Although the Board may not assign an
extraschedular rating in the first instance, it must
specifically adjudicate whether to refer a case for
extraschedular evaluation when the issue either is raised by
the claimant or is reasonably raised by the evidence of
record. Barringer v. Peake, 22 Vet. App. 242 (2008).
If the evidence raises the question of entitlement to an
extraschedular rating, the threshold factor for
extraschedular consideration is a finding that the evidence
before VA presents such an exceptional disability picture
that the available schedular evaluations for that service-
connected disability are inadequate. Therefore, initially,
there must be a comparison between the level of severity and
symptomatology of the claimant's service-connected disability
with the criteria in the rating schedule for that disability.
Thun v. Peake, 22 Vet. App. 111 (2008).
Under the approach prescribed by VA, if the criteria
reasonably describe the claimant's disability level and
symptomatology, then the claimant's disability picture is
contemplated by the rating schedule, the assigned schedular
evaluation is, therefore, adequate, and no referral is
required. In the second step of the inquiry, however, if the
schedular evaluation does not contemplate the claimant's
level of disability and symptomatology and is found
inadequate, the RO or Board must determine whether the
claimant's exceptional disability picture exhibits other
related factors such as those provided by the regulation as
"governing norms." 38 C.F.R. 3.321(b)(1) (related factors
include "marked interference with employment" and
"frequent periods of hospitalization").
In this case, the Board finds that the Veteran's right wrist
disability is manifested by pain and loss of function of the
right wrist, which is contemplated by the Diagnostic Codes
discussed above. Because the service-connected disability is
adequately rated by the criteria discussed above, the Board
finds that consideration of an extraschedular rating is not
warranted.
ORDER
Entitlement to an increased rating in excess of 50 percent
for the service connected residuals, right scaphoid fracture
and scar with history of non-union post-operative changes and
traumatic degenerative changes is denied.
____________________________________________
STEVEN D. REISS
Acting Veterans Law Judge,
Board of Veterans' Appeals
Department of Veterans Affairs